The Ethics of Institutions: Pitfalls of an Engaged Folklore and Tales from the Federal Courts

Abstract

Maribel Alvarez, in a recent beautifully crafted overview of the shifts and changes made by and to folklore, states that among other important changes, folklore and its multicultural allies have moved dynamically towards a development of "an emerging politics of social, cultural, and economic justice." After carefully delineating the many issues surrounding this dynamic, Alvarez calls to situate folklore to larger structural aspects of social policy, such as demographic change and human rights among others. I think she is right, and folklore may contribute greatly to the identification of "on the ground" cultural and social issues too often missed by those most concerned with social and economic justice. But I have a caveat or two that concerns not the ethical dimensions of folklore, because these have been long laid out, in which protection of the populations is a major principle. Rather once folklore interacts with institutional ethical realms in this larger interaction, the question arises whether folklore's highly ethical and many times localized principles will coincide especially with juridical contexts in which the underlying principles of protection of the rights of defendants is compromised by the adversarial relationship of all juridical proceedings. Questions of intellectual property, mythic claims to ancestral lands and ritual settings, practices involving animals, and community practices of a cultural community regarding dress, styles, and presentations in public places and so on would be part of the cultural iota that might be highly useful in juridical settings. Yet all would become part and parcel of the adversarial context in which each would be opposed by equal or stronger countervailing processes. The implications for cultural practitioners may be profound and lead to totally unexpected outcomes and in some cases detrimental to those whom the cultural worker seeks to protect, explain, or support. I would like to share with you two tales thirty years apart in which I attempted in the first case to utilize cultural folk knowledge about relationships and gender expectations to help explain the impact of non-consenting sterilization of Mexican women in Los Angeles in 1978 in the case of Madrigal versus Quilligan. In the second case, I sought to bring to bear an explanation of the folk practice of rotating savings and credit associations to the judicial proceedings of the United States of America versus Paloma Rivera in 2008 (pseudonym and date slightly changed). For folklorists, one case is instructive of the misuse of the information we are expert in by the court system, and in the second, concerns how the judicial system ignored the information provided because of its "exoticness." Both are of the highest ethical concerns and although in the realm of unintended consequences, we still are responsible for their outcomes.